The Tablet, June 17, 2010
Canon Lawyer: Sister's Excommunication 'Null and Void'
By James Martin, S.J.
In a Letter to the Editor of The
(London) Tablet, Ladislas Orsy, S.J., professor of canon law at Georgetown University
has weighed in on the excommunication of Sister Margaret Mary McBride, and has
declared it, based on canon law, "null and void." The Tablet has graciously
provided us with the full text of Fr. Orsy's letter, which appears in this week's
issue. And coming soon in America, Kevin O’Rourke, O.P., professor of bioethics
at the Neiswanger Institute of Bioethics and Public Policy, Stritch School of
Medicine, Loyola University, Chicago, and a consultant for many Catholic health
care corporations, weighs in as well. He states in his article "What Happened
in Phoenix," available online now, "Even if a direct abortion had
been performed, the declaration that an automatic excommunication had been incurred
is questionable." The text of Fr. Orsy's letter follows:
Excommunication null and void
The articles by Michael Sean Winters
(Sister of Mercy, June 4) and Tina Beattie (In the Balance, June 4) convey the
complexity of the case of Sr. Margaret Mary McBride whom the Bishop of Phoenix,
Arizona, declared automatically, latae sententiae, excommunicated for allegedly
cooperating in a crime of abortion. May I complete their reflections on morality
by some clarifications in legality?
1. The Code of Canon Law, following centuries of tradition, draws a sharp distinction
between an act that is morally wrong, and a legal penalty that may, or may not
be, attached to it. Thus, the correctness of the penalty must be judged by its
own laws found in the Code.
2. The term “excommunication” can be misleading. Briefly, in modern
canon law it means that a person is prohibited from receiving the sacraments
and from holding an office in the church (cf. canon 1331). In no way does such
a penalty “excommunicate the person from the Catholic church,” as
Mr. Winters states (emphasis is mine).
3. According to canon 1321 § 1 „No one is punished unless the external
violation of a law or precept committed by the person is gravely imputable by
reason of malice or [grave] fault, ex dolo vel ex culpa. Excommunication is
an extreme penalty; it condemns a member of the community to spiritual starvation.
The church, therefore, does not want to inflict it unless there is a deliberate
act of defiance. Nothing that we know about the attitude of Sr. Margaret speaks
of defiance.
4. Canon 1398 states: “A person who procures an abortion that becomes effective,
effectu secuto, incurs automatic, latae sententiae, excommunication.” The
key word is “procures,” procurat. Common sense (or any dictionary)
tells us that to give an opinion is not the same as to procure. However, there
is more to it. Ecclesiastical criminal laws are of “strict interpretation”:
their meaning is found in their true but narrowest sense. Now, the narrowest
sense of "procuring” does not include “giving an opinion,”
certainly not when an answer must be given under pressure and the question makes
even the experts tremble. Moreover, “to procure” means to do something
actively in order to bring about the intended effect. Not a shred of evidence
has ever been made public that would prove (or even hint) that Sr. Margaret
“procured” an abortion. From what we know, her entire life was dedicated
to the saving and mending of human lives. A good competent judge would take
such lifelong attitude into account.
5. The Code of Canon Law contains nothing specifically and precisely (a “must”
in criminal matters) about an automatic excommunication inflicted on “cooperators”
in abortion (which does not exclude that their act could have been wrong and
that they may suffer other punishment). It follows that no cooperator is automatically
excommunicated unless the cooperation itself amounts to procuring the abortion.
6. The church’s criminal law is based on an ancient and inviolable rule:
whenever objective doubt exists, however small, as to whether or not a person
has incurred an automatic excommunication, the person must not be held excommunicated.
The rule is not canonical hair splitting; it is for the defense of the accused.
This rule binds every bishop and each of his flock.
7. The conclusion is compelling: to say the least, it is highly doubtful that
Sr. Margaret acted out of malice aforethought, or that she actively procured
an abortion. Hence, she could not have been--and she was not--automatically
excommunicated. The declaration of the excommunication by the local bishop,
therefore, is null and void. In her case, canon 1324 § 3 is applicable,
“the accused is not bound by the automatic, latae sententiae, penalty”
and, of course, no one is bound to respect it.
8. At this time no information is available whether or not the case is on appeal. Be that as it may, we may throw more light on the situation by recalling what a competent appeal judge should inquire about. He should ask whether or not the bishop fulfilled his duty detailed in canon 1341: “The Ordinary is to start a judicial or administrative process to impose and declare penalties only after he has ascertained that neither fraternal correction, nor reproof, nor other means of pastoral solicitude [are effective in the situation]”
Also, the judge should ask whether or not the Ordinary observed canon 1342 § 1 mandating that a judicial process--never to be omitted without a just cause--had been completed before any formal declaration. The bypassing of such injunctions by the Ordinary may not invalidate the declaration, but it would alert a conscientious judge to scrutinize the whole process for more substantial violations of justice. (At the present we do not know how the Bishop of Phoenix handled such obligations.)
Final words: Our canonical procedures may have deficiencies (they do) but there are times, when properly applied, they reveal the humanity of the church and church’s intent to protect the innocent.
(Prof) Ladislas Orsy, SJ
Georgetown University Law Center
Washington, DC